Category Archives: Legal Issues

Jun 30

THE US SUPREME COURT’S PROPOSITION 8 RULING, AND TABOR

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Today, in its ruling on California’s Proposition 8, the Supreme Court ruled that citizens’ groups do not have standing to defend a law passed by referendum or initiative in federal court, should the state decline to do so.  By making this reasoning the basis for its decision, the Court has potentially invited grave implications for Colorado and its Taxpayers Bill of Rights.

Currently, TABOR is the subject of a lawsuit arguing that it violates the US Constitution’s provisions that each state have a republican form of government:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

ARTICLE IV, SECTION 4

The plaintiffs, which include five current Democratic state legislators, argue that, by removing the legislature’s ability to raise taxes without approval by the people, has violated that clause.  That case is now in federal court, in front of the 10th Circuit Court of Appeals.

That assertion has been challenged on a number of counts.  First, the federal courts have ruled that clause – the “Guarantee Clause” to be non-justiciable, leaving it instead as an issue for the political branches.  Second, there is every reason to believe that the founders used the word “republican” to describe even systems of direct democracy. Continue reading →

May 23

TRIAL PHASE CONCLUDES FOR BRIDGE ENTERPRISE FUND

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This week the lawsuit brought by the TABOR Foundation was heard in Denver District Court.  Judge Michael Martinez heard the testimony.  Attorney Jim Manley from Mountain States Legal Foundation was the principal representative for the Plaintiffs.  The Defendants were the Fund itself and the Colorado Transportation Commission.  The Attorney General’s office is responsible for defending the state government’s scheme, but contracted with attorney Mark Grueskin to handle the defense.

 The lawsuit asks the Colorado court to rule the issuance of debt without prior voter approval unconstitutional, under the Taxpayer’s Bill of Rights (TABOR).  As part of new vehicle charges approved during the Ritter administration, a “bridge safety surcharge” was designated as a fee, not a tax, and never offered as required for voter approval.  The Bridge Enterprise was established as a separate government business to repair bridges.  The scheme declares that because you might  drive over certain bridges you must pay a yearly toll, which is collected when you register your vehicle.  The “tolls” received as income allowed the Bridge Enterprise Fund to issue $300 million in bonds without prior voter approval, also required under TABOR.  Total debt may eventually be over $1 billion. For more information, see http://tax.i2i.org/files/2013/05/Bridge_Enterprise_Fund.pdf from A Citizen’s Budget for 2013 published by the Independence Institute.

 “The critical issue is whether this government can break trust with the citizens of Colorado,” said TABOR Foundation chairman Penn R. Pfiffner.  “Bridges need to be built and maintained, but elected and appointed officials can’t ignore the constitution as they pursue those goals.  Do it the right way.”

 Five witnesses; two heroes.

Two Plaintiff witnesses were Ms. Chris Sammons and Willie Wharton, who both explained that they had to register vehicles and therefore pay the bridge surcharge “fee,” although those specifically identified vehicles never cross a single Bridge Enterprise bridge.  Continue reading →

May 15

Bridge Enterprise Trial update 2

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Friends of TABOR,

The trial testimony and arguments wrapped up on Tuesday, a day earlier than the time allotted. The “evidentiary” portion of the trial is complete.  Our TABOR Foundation Executive Director, Bob Foland, was present for the morning’s proceedings and I for the afternoon’s.  Our combined report follows.

Judge Michael Martinez expects both Plaintiffs (us) and Defendants to file post-trial briefs, and set a deadline 21 days out.  When Mountain States Legal Foundation files that brief, we will be done with the trial.  From that point, we will have to wait for the Judge’s ruling.  Regarding another case involving a different judge, our lead attorney observed that he is waiting for a ruling a year later.  We don’t know about Judge Martinez’s intentions or workload, so simply have no basis to give you an expected date; just that it probably won’t follow hard on the heels of the final briefs.

The early part of the morning was taken to complete testimony of Plaintiff’s last witness, the engineer from Florida.  As is only fair, the Defense was given its full opportunity to cross-examine the witness.  After that, it was Defendants’ turn to present its witnesses.

The first Defense witness was the contractor who handles or assists the Bridge Enterprise with management and administration.  He explained how his firm had participated. Continue reading →

May 15

Bridge Enterprise Fund trial update

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Friends of TABOR,

Yesterday (Monday), the trial began on the lawsuit to prove the Bridge Enterprise Fund is unconstitutional because it ignores the rules laid out in the Taxpayer’s Bill of Rights.  You, as supporters and contributors, are bringing the lawsuit through our organization, the TABOR Foundation.  We are represented by Mountain States Legal Foundation, and that legal firm’s attorney who is arguing the case is Jim Manley.

For a refresher on the issues, see http://tax.i2i.org/files/2013/05/Bridge_Enterprise_Fund.pdf , from A Citizen’s Budget for 2013 published by the Independence Institute.

Five witnesses; two heroes.

Plaintiffs (us) get to go first.  One central fiction to keep in mind is the scheme declares that as you drive over certain bridges on the highway system, you are paying tolls to do so; tolls which are collected through a “safety surcharge.” The first two witnesses were Ms. Chris Sammons and Willie Wharton who both explained that they had to register vehicles and therefore pay the bridge surcharge “fee,” although those specifically identified vehicles never cross a single bridge.  They did you proud, providing testimony that was calm, convincing, certain, occasionally humorous, and very credible.  To me, they are my newest heroes.  Both took a day off, drove in from Grand County (think, from beyond the western border of Rocky Mountain National Park), leaving very early to get to Denver on time.  Continue reading →

Feb 25

Stop House Bill 1041 — A Public Information Tax

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Assault on Civic Engagement

Stop House Bill 1041 — A Public Information Tax

  The most regressive public policy proposal to come out of the Colorado capitol in years is Senator Kefalas’s “citizens-be-damned” bill to impose significant fees on citizens seeking public information. It is a direct assault on the public’s right to be informed about activities of  their goverment.

This video spoofs the bill’s impact, but it’s not hard to imagine the troublesome realities in your hometown.

Public Information Tax (User Pay) in Coloradoville

Research Fees — The New Tax 

“Research fees” for public records are not authorized by Colorado statute. Most local governments do not currently charge such fees for records review. Bill 1041 mandates a drastic change to begin imposing research fees on citizens unless waived.

The default setting for cash-strapped governments such as school boards, state agencies, fire districts, and clerks’ offices will become “fee-based, user-pay records disclosure,” and waivers will become the exception rather than the rule. The press has written about the controversial bill, but HB1041 is being pushed by lawmakers faster than the public can catch up in order to protest. See recent articles in Colorado Independent,Boulder Weekly, and Colorado Statesman. Continue reading →

Feb 16

TABOR FOUNDATION v. COLORADO BRIDGE ENTERPRISE, et al

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

The Colorado Bridge Enterprise is not a TABOR-exempt business. Colo. Const. art. X, § 20(2)(d). The CBE does not qualify as a TABOR-exempt enterprise because it does not function as self-supporting business and because in fiscal year 2011, the CBE received grants from CDOT totaling more than ten percent of its annual revenue. Under either rationale, the CBE did not have enterprise status when it levied the bridge safety surcharge or created $300 million in new debt. Accordingly, both actions required voter approval pursuant to TABOR.

Until such time as Defendants receive voter approval for these actions, Defendants must be enjoined against continued enforcement and maintenance of the bridge safety surcharge and must be enjoined from issuing revenue bonds. Colo. Const. art. X, § 20(4)(a)–(b); Nicholl, 896 P.2d at 866 (“[T]axpayers have standing to seek to enjoin an unlawful expenditure of public funds.”); see also Barber v. Ritter, 170 P.3d 763, 779 (Colo. Ct. App. 2007), aff’d in part, rev’d in part on other grounds, 196 P.3d 238 (Colo. 2008) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (“a law repugnant to the constitution is void”)). Additionally, TABOR requires that all “[r]evenue collected, kept, or spent illegally” be refunded. Colo. Const. art. X, § 20(1).

http://www.jdsupra.com/legalnews/plaintiffs-motion-for-summary-judgment-54772/

Dec 13

New II Issue Paper Rebuts Myth that Citizen Review of Laws and Taxes Violates the Republican Form

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By Rob Natelson**

If you are exposed to enough politics, sooner or later you’ll hear the old saw that the U.S. is “a republic and not a democracy.” Along with that saying goes the following claim: Allowing voter initiatives and referenda is unconstitutional: If a state lets voters enact laws or veto tax hikes, the state is too democratic to meet the Constitution’s mandate that it have a “republican form of government.”

A new Independence Institute Issue Paper, which I authored, examines those assertions in detail. The Paper shows that both are essentially myths.

The nation’s best-known measure requiring voter approval of most tax hikes is Colorado’s Taxpayer Bill of Rights (TABOR), adopted by the voters in 1992. This Issue Paper is published in response to a legal attack on TABOR: A group of government apologists has sued in federal court claiming that by limiting legislative control over fiscal measures, Colorado has violated the U.S. Constitution.

In a nutshell, the new Issue Paper finds:

* The American Founders did not firmly distinguish between a “republic” and a “democracy.” Some used the two words as if they were synonymous. Some adopted the view of Montesquieu that there were two kinds of republics: (1) Those controlled by a few (aristocracies) and (2) those controlled by the many (democracies).

* Dictionaries of the time defined “republic” as merely a popular government, as opposed to a monarchy. One encyclopedia-type dictionary included an article tracking Montesquieu’s definitions. Continue reading →

Nov 18

Colorado AG Suthers correct to appeal TABOR decision

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By Rob Natelson

Guest Commentary

Attorney General John Suthers is correct to appeal a federal judge’s decision that allows the anti-TABOR lawsuit to continue.

The case arose when a group of government apologists sued in federal court to invalidate Colorado’s 20-year-old Taxpayers Bill of Rights (TABOR). That measure assures that voters have the final say over most state and local tax increases. The plaintiffs won an unexpected victory last month when Judge William J. Martinez found-despite U.S. Supreme Court precedent to the contrary-that most of their claims were “justiciable” (resolvable in court).

The plaintiffs contend that TABOR leaves Colorado without a “fully effective legislature”-a phrase apparently invented for the occasion. This, plaintiffs say, violates Article IV, Section 4 of the U.S. Constitution. That provision, known as the Guarantee Clause, guarantees to each state a “Republican Form of Government.”

The plaintiffs’ claim, however, is not well-researched. And the background of the Guarantee Clause reveals it to be absurd. Continue reading →

Nov 17

Do Citizen Votes on Taxes and Laws Violate the Constitution’s Requirement of a “Republican Form of Government?”

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IP-12-2012 (October 2012) Author: Robert G. Natelson

PDF of full Issue Paper

Introduction: Opponents of popular participation in government have long argued that when a state constitution or legislature permits the people to vote on revenue measures and other laws, this puts the state out of compliance with the U.S. Constitution’s Guarantee Clause: the requirement at all states have a “Republican Form of Government.” Traditionally, their argument has been that the Constitution draws a sharp distinction between a republic and a democracy, and that citizen initiatives and referenda are too democratic to be republican. Recently, a group of plaintiffs sued in federal court, challenging Colorado’s Taxpayer Bill of Rights (TABOR) relying on a variation of this theory.

In this Issue Paper, Professor Rob Natelson, Senior Fellow in Constitutional Jurisprudence and the author of the most important scholarly article on the Guarantee Clause, sets the record straight. Marshaling evidence from Founding-Era sources and from the words of the Founders themselves, he shows that the phrase “Republican Form of Government” permits citizen lawmaking—and that, in fact, most of the governments on the Founders’ list of republics included far more citizen lawmaking than is permitted in Colorado or any other American state. He further shows that the principal purpose of the Guarantee Clause was not to restrict popular government, but to protect popular government by forestalling monarchy.

http://liberty.i2i.org/2012/10/26/do-citizen-votes-on-taxes-and-laws-violate-the-constitutions-requirement-of-a-republican-form-of-government/